October 17, 2012 5:33 pm

One month ago, the state Legislature submitted what has become known as the first “post budget filing” to the Washington state Supreme Court outlining how it made “steady progress” toward meeting the courts order to fully fund basic education by 2018.

This was part of the court’s requirement that the Legislature report regularly and was part of the rather rare move by the court to retain jurisdiction in McCleary v. State of Washington. While some in the Legislature have complained that this violates the seperation of powers and the deference one branch should show another, the Legislature formed a special committee to prepare the reports, due after each budget and at other times the court wishes.

Today’s filing from attorneys representing the winners is also part of the court’s retention of jurisdiction. It chose to give the winners the chance to weigh in within 30 days. To put it mildly, the plaintiffs were not impressed with the state’s report, its progress or its attitude.

“The State’s post-budget filing shows legislators continue to talk about providing ample funding for the State’s K-12 public schools,” read the filing signed by lead attorney Thomas Ahearne. “But it also shows they continued the State’s perennial failure to provide that funding.

“The court rulings in this case do not say the State should talk about amply funding its public schools. With all due respect to Nike, the court rulings in this case ordered the State to ‘just do it.’ The State’s post-budget filing, however, confirms the State did not make the ‘real and measurable progress’ required by this Court’s Order.”

After laying out why it thinks the Legislature’s decision not to add significantly to school funding and instead to claim credit for not cutting public schools even deeper, the plaintiffs asked the court to get tough and order the Legislature to act.

They suggested an order that finds that the post-budget filing did not show steady progress and include this language: “This Court will therefore take firm action (the form or type of which elected officials might not like) if the State’s 2013 budget fails to make significant progress fully funding the reforms promised under ESHB 2261 as well as achieving full Article IX, §1 compliance by 2018.”

House Bill 2261 is the bill calling for and beginning implementation of full-funding passed even before the court ruled on McCleary. Article IX, Section 1 is the constitutional section saying it is the paramount duty of the state to make ample provision for all children.

“Plaintiffs respectfully request that this Court vigorously assert – rather than timidly shy away from – this Court’s Constitutional duty to uphold and enforce the paramount Constitutional right of every Washington child currently sitting in our State’s K-12 schools to an amply funded education. A positive Constitutional right that is equally held by all Washington children – not just those children who are more privileged, more politically popular, or more easy to teach.”

The 57-page response terms this a teachable moment with the court as teacher and the legislators as students.

“Does our Constitution grant citizens legally enforceable rights, or just make hollow suggestions that courts allow government officials to reject if politically convenient? In our State, is a Constitutional mandate an order that the government must obey, or just a suggestion that it may obey if it wants to?”

“In short, the State’s ongoing, longtime violation of its legal duty under Article IX, §1 is not subject to dispute in this case. Constitutional case law accordingly confirms that a court can force the legislative or executive branch to comply with the Constitution by issuing orders which, for example:
– impose monetary contempt sanctions against legislative branch officials;
– prohibit government expenditures on certain other matters until the court’s Constitutional ruling is complied with;
– order the Legislature to pass legislation to fund specific education amounts;
– prohibit the State from limiting an education program to less than all eligible students in a given grade level;
– order the sale of State property to fund Constitutional compliance; and
– issue a writ of mandamus to the legislature to compel performance.

The plaintiffs appear especially unhappy with what it saw as the Legislature’s disregard for the information and action required by the court’s order in McCleary and its subsequent order laying out the reporting.

“To ensure the defendant State stops that unconstitutional underfunding, this Court Ordered the State to submit a
court filing after each State budget is finalized. This Court Ordered that each post-budget filing must: (1) “demonstrate steady progress” implementing the reforms promised under ESHB 2261, and (2) “show real and measurable progress towards achieving full compliance with article IX, section 1 by 2018.”

“The State’s September 2012 post-budget filing does neither. To the contrary, it acknowledges that the 2012 legislature chose to make virtually no progress implementing funding increases under ESHB 2261.”

“Plaintiffs fully appreciate the principle theme underlying the post-budget narrative filed by the State – i.e., that providing the significant K-12 funding increases required to comply with our State Constitution isn’t easy for elected officials to do,” the response stated. “Plaintiffs do not believe, however, that State government officials are only required to obey our State Constitution when it’s easy.

“Plaintiffs believe the 2012 legislators’ decision to continue the State’s violation of Constitutional rights during the 2012/2013 school year is not Constitutionally acceptable. Plaintiffs accordingly submit that the “appropriate step” for this Court to take is to firmly stand up as the one branch of State government that actually upholds (instead of just talks about) the Constitutional right of every Washington child to an amply funded K-12 education.”

“As a Constitutional matter, it is completely unacceptable for the defendant State to have chosen to not make significant progress reducing its unconstitutional (and long-known) underfunding of its K-12 public schools this 2012/2013 school year.”

“It’s easy to talk about numbers,” plaintiff’s continue. “It’s easy to talk about statistics. But when it comes right down to it, every kid we lose is something that is very, very real. The great tragedy of the State’s long debate and delay is that we’re not talking about numbers. We’re talking about real world kids.”

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